ONE JUDGE, ONE VOTE

By RODNEY A. SMOLLA; Rodney A. Smolla, a law professor at the University of Arkansas, is the author of ''Suing the Press.''

Published: June 21, 1987

THE BURGER YEARS Rights and Wrongs in the Supreme Court 1969-1986. Edited by Herman Schwartz. 293 pp. New York: Elisabeth Sifton Books/Viking. $22.95.

AS a matter of convenience we tend to mark epochs in the Supreme Court's history by reference to the tenure of the Chief Justice, referring to the ''Marshall Court,'' the ''Warren Court,'' now the ''Rehnquist Court.'' These divisions are often artificial and misleading, however, overstating the intellectual imprint of the Chief Justice, and understating the contributions of other Justices who have more powerfully influenced the Court's direction. ''The Burger Years'' is a collection of 15 retrospective essays, by different authors, of the work of the Supreme Court during Warren E. Burger's 17-year tenure.

What the essays reveal is that the Burger Court has been for many years the Rehnquist Court. The editor, Herman Schwartz, in an excellent opening essay, sets the tone for the pieces that follow, a tone decidedly antagonistic to the Edwin Meese-William Rehnquist axis of jurisprudence. Mr. Schwartz and his contributors treat the Constitution as a document intended to invite what Representative Thaddeus Stevens in 1866 called the ''advancing progress of a higher morality.''

In cases covering the spectrum of Supreme Court litigation - freedom of speech, religion, privacy, race and sex discrimination, criminal justice, regulation of business and labor-management relations - the Burger years were a series of battles between Associate Justice William J. Brennan Jr. and Justice Rehnquist for control of the swing votes in the Court's center. Justice Rehnquist was in the minority on affirmative action, abortion and school prayer, but on the whole he won more battles than he lost. Shifting alignments in the center of the Court produced a pattern of middling, meandering conservatism. The Court tended to avoid directly sentencing key Warren-era decisions to death, opting rather to render them impotent, limiting their reach with procedural and remedial circumscriptions, and revising and eviscerating their central rationales.

An illusion of continuity with the Warren years was created, but by slow degrees the past was displaced by a new jurispruden tial agenda. Prior decisions that were originally based on relatively firm philosophical principles were recast as decisions based on empirical cost/benefit judgments. The Burger Court would then reassess the relative costs and benefits, to strike a new balance substantially undermining the effectiveness of the Warren precedent. Once pragmatic calculations of pluses and minuses replaced these anchoring philosophical principles, Warren Court rulings began slipping away.

Yale Kamisar, in his chapter on criminal procedure, furnishes the most dramatic illustrations of this process. The now famous police warnings set forth in the Miranda ruling originally were conceived as required by the Constitution to dispel the compulsion inherent in custodial police interrogation. In a decision written by Justice Rehnquist, however, the Court recast those warnings, stating that they ''were not themselves required by the Constitution.'' A ''mere'' Miranda violation is not necessarily a constitutional violation, the Court stated, if the defendant's incriminating confession was not ''involuntary.'' SIMILARLY, the ''exclusionary rule,'' under which illegally seized evidence is excluded from admission in court, originally was grounded on the principle that in a free society the government ought not capitalize on its own illegalities and that the criminal justice system should avoid sanctioning and ratifying unconstitutional police conduct by forbidding the introduction of evidence that is tainted by official lawlessness.

The Burger Court rejected the core premise of the exclusionary rule, replacing it with a cost/ benefit analysis in which the freeing of a ''clearly guilty'' criminal was balanced against the incremental deterrent impact on police misconduct of excluding the evidence. This process worked inexorably to favor the prosecution, for the Court was disposed to treat police efficiency in combating crime as a more palpable interest than the ''speculative'' utility of the exclusionary rule as a deterrent against police misbehavior.

At times during the Burger years, the process of weighing competing interests was manipulated with only barely disguised duplicity. The Court, as it had done from 1900 to 1937, showed a renewed interest in the protection of entrepreneurial liberty. In the antitrust area, the Court consistently avoided rules of ''per se'' illegality in favor of a ''rule of reason'' test for measuring allegedly anticompetitive business conduct, a balancing approach in which business defendants usually won. In the labor-manage-ment area, the Court was markedly more receptive to challenges by employers to decisions of the National Labor Relations Board than to challenges by unions.

The Court tended to limit the scope of the securities laws, and was particularly sensitive to the manner in which securities fraud litigation may be used as an oppressive device to blackmail corporate defendants into settlement of groundless claims. In 1975, for example, Justice Rehnquist wrote of the ''in terrorem'' effect of securities litigation, stating that ''the prospect of extensive deposition of defendant's officers and associates and the concomitant opportunity for extensive discovery of business documents, is a common occurrence.'' This was precisely the argument advanced by the news organizations in libel cases, in which enormously punishing discovery costs are often borne by a press defending largely groundless libel suits. Yet the Burger Court consistently refused to grant the press any special dispensation from generally applicable civil litigation rules. The Court found the big chill of litigation on securities transactions more pernicious than on the exercise of First Amendment rights.

There was, at least, a certain consistency to this inconsistency. Civil liberties usually lost. In a 1976 case, for example, the Court rejected a newspaper photographer's claim that his constitutional rights were violated when police chiefs circulated a flier erroneously depicting him as an ''active shoplifter.'' Justice Rehnquist wrote that ''the frequently drastic effect of the 'stigma' which may result from defamation by the government . . . does not establish that reputation alone . . . is by itself sufficient to invoke the procedural protection of the Due Process Clause.''

When media defendants attempted to raise First Amend-ment defenses to libel claims, however, the Court treated reputation with near-sacred reverence, writing that ''the individual's right to the protection of his own name 'reflects no more than our basic concept of the essential dignity and worth of every human being.' '' IN a 1979 defamation suit the plantiff had been included in a list of alleged Soviet agents in a book about the K.G.B. The plaintiff had in fact never been convicted of spying, but had pleaded guilty to criminal contempt for failing to respond to a New York Federal grand jury subpoena investigating Soviet espionage. Fifteen news stories concerning the plaintiff appeared in the New York and Washington press, but Justice Rehnquist, writing for the Court, refused to classify the plaintiff as a public figure (which would have triggered special First Amendment protection for the publisher), stating that to treat the plaintiff as a public figure ''would create an 'open season' for all who sought to defame persons convicted of crime.'' When it was police chiefs firing at news reporters, of course, Justice Rehnquist apparently thought it was open season the year round.